JSK v Nyo

Case [2025] QCAT 94

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

JSK V NYO [2025] QCAT 94
PARTIES: JSK

(applicant)

V
NYO

(respondent)

APPLICATION NO/S:

MCD Q1141-24

MATTER TYPE:

Other minor civil dispute matters

REASONS DELIVERED ON:

26 February 2025

DECISION DATE: 


20 December 2024

HEARD AT:

Brisbane

DECISION OF:

A/SM Lember
ORDERS:

Non-publication

1.   The application by the application filed on 22 November 2024 for a non-publication order is refused.

Strike out

2.   The application by the respondent filed on 23 September 2024 for strike-out is granted. The application in a minor civil dispute – consumer trader dispute is dismissed for want of jurisdiction.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute –  consumer trader dispute – where claim against family consultant by a party for whom a family report was written in a parenting dispute – whether a family consultant is a trader – where claim falls outside consumer trader jurisdiction

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – whether proceedings should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Family Law Act 1975 (Cth) s 3, s 114Q
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.03
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 12, s 13, s 32, s 47, s 66, s 122

AAlert Training Pty Ltd v Scott & Ors [2014] QCATA 95

Aguilar v Egnalig [2014] QCATA 219
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Butler v Corporate Consulting Services Pty Ltd [2012] QCAT 258

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Dey v Victorian Railways Commissioners [1949] 78 CLR 62
Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65
Fox v Percy (2003) 214 CLR 118
Holman v Deol [1979] 1 NSWLR 640
Markan v Bar Association of Queensland [2013] QSC 146
Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162
Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36
Singleton v KRG Conveyancing Centre trading as KRG Law [2010] QCAT 708
Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).

REASONS FOR DECISION

What is the application about?

  1. JSK[1] was to party a family law parenting proceeding before the Federal Circuit and Family Court of Australia (FCFCOA). NYO is a Family Consultant and Family Report Writer who provides fee-for-service family report writing by Court-appointment and to private parties in parenting proceedings before the FCFCOA.

    [1]Parties have been de-identified and pseudonyms adopted for pursuant to Part XIVB of the Family Law Act 1975 (Cth).

  2. Evidence before the…

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Details
AGLC
JSK v Nyo [2025] QCAT 94
Case
[2025] QCAT 94
Decision Date

CaseChat Overview and Summary

JSK commenced proceedings against Nyo, a family consultant, in the Queensland Civil and Administrative Tribunal (QCAT) alleging that the family report prepared by Nyo in a parenting dispute was negligently prepared and caused harm. The dispute centred on whether Nyo was a "trader" for the purposes of the consumer trader jurisdiction of QCAT. JSK argued that Nyo's activities as a family consultant constituted a trade or commerce within the meaning of the legislation. Conversely, Nyo contended that as a family consultant, she was not a trader and thus the claim fell outside the consumer trader jurisdiction of QCAT.

The central legal issue before the Tribunal was whether a family consultant could be classified as a trader for the purposes of QCAT’s consumer trader jurisdiction. This required an interpretation of the relevant statutory provisions and an analysis of whether the services provided by Nyo fell within the scope of a "trader". Additionally, the Tribunal had to determine whether the proceedings should be dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) due to a lack of jurisdiction.

The Tribunal held that Nyo, as a family consultant, did not fall within the definition of a trader under the relevant legislation. Consequently, the claim against her did not fall within the consumer trader jurisdiction of QCAT. The Tribunal also considered that the application for a non-publication order was not necessary to avoid interference with the proper administration of justice or to protect the physical or mental health or safety of a person. Therefore, the application for a non-publication order was refused, and the application for strike-out was granted. The proceedings were dismissed for want of jurisdiction.

The final orders of the Tribunal were that the application for a non-publication order was refused and the application for strike-out was granted. Consequently, the application in the minor civil dispute – consumer trader dispute was dismissed for want of jurisdiction.

Orders

Orders of the court

Non-publication

1. The application by the application filed on 22 November 2024 for a non-publication order is refused.

Strike out

2. The application by the respondent filed on 23 September 2024 for strike-out is granted. The application in a minor civil dispute – consumer trader dispute is dismissed for want of jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 121 of the FLA previously provided that: 121 Restriction on publication of evidence(1) A person shall not print or publish-(a) any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or(b) any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.(2) A person who contravenes sub-section (1) is guilty of an offence punishable, on conviction-(a) in the case of a first offence, or a second or subsequent offence prosecuted summarily-by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months; and(b) in the case of a second or subsequent offence, being an offence prosecuted on indictment-by a fine not exceeding $2,000 or imprisonment for a period not exceeding 1 year. Part XIVB of the FLA now provides in section 114Q that a person commits an indictable offence if they communicate information including the name of a party to or of a witness in family law proceedings, unless approved by a “court”. As the Tribunal is not a “court” for the purpose of family law proceedings,[21] it cannot approve of or excuse an offence against section 121, as it were, or of s 114Q as it is now. [21]FLA, s 3. JSK did not satisfy the Tribunal that the non-publication order he sought was necessary in these proceedings:(i)to avoid interfering with the proper administration of justice; or(j)to avoid endangering the physical or mental health or safety of a person; or(k)to avoid offending public decency or morality; or(l)to avoid the publication of confidential information or information whose publication would be contrary to the public interest, and the application was refused for those reasons.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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